PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6
JASON WAYNE HURST,
Petitioner - Appellant,
v.
CARLTON B. JOYNER, Warden, Central Prison, Raleigh, North
Carolina,
Respondent - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cv-00725-TDS-LPA)
Argued: January 29, 2014 Decided: July 2, 2014
Before TRAXLER, Chief Judge, and NIEMEYER and SHEDD, Circuit
Judges.
Reversed and remanded by published opinion. Chief Judge Traxler
wrote the opinion, in which Judge Niemeyer and Judge Shedd
joined. Judge Shedd wrote a separate concurring opinion, in
which Judge Niemeyer joined.
ARGUED: Robert Hood Hale, Jr., ROBERT H. HALE, JR. & ASSOCIATES,
Raleigh, North Carolina, for Appellant. Mary Carla Hollis,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,
for Appellee. ON BRIEF: Roy Cooper, Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee.
TRAXLER, Chief Judge:
Petitioner Jason Wayne Hurst, a North Carolina death row
inmate, appeals the district court’s denial of his petition for
a writ of habeas corpus under 28 U.S.C. § 2254, alleging that
his Sixth Amendment rights to an impartial jury and to be
confronted with the witnesses against him were violated by an
extraneous communication between a juror and her father during
the penalty phase of his capital murder trial. For the
following reasons, we reverse the district court’s judgment and
remand for an evidentiary hearing to determine whether the
extraneous communication had a substantial and injurious effect
or influence on the jury’s verdict.
I.
A.
The facts underlying this capital murder are well
documented in the state court decision affirming Hurst’s
conviction and sentence on direct appeal. See State v. Hurst,
624 S.E.2d 309 (N.C. 2006).
On June 9, 2002, Daniel Branch told his wife that he was
going to Asheboro, North Carolina, to trade guns with Hurst,
with whom he was acquainted. Branch loaded several guns in his
vehicle and left home in the late morning. When he failed to
return, Branch’s wife contacted authorities. During the
investigation, North Carolina authorities were advised that
2
Hurst had been seen in West Virginia driving a vehicle that
matched the information they had regarding Branch’s vehicle.
Hurst was located and apprehended, and he confessed to killing
Branch with a shotgun and stealing his car. Branch’s body was
found in the field where Hurst murdered him.
Hurst was convicted by the jury of first-degree murder and,
following the penalty phase, sentenced to death. The North
Carolina Supreme Court affirmed, see id., and the United States
Supreme Court denied certiorari review, see Hurst v. North
Carolina, 549 U.S. 875 (2006).
On June 25, 2007, Hurst filed a Motion for Appropriate
Relief (“MAR”) in state court seeking, among other things,
postconviction relief from his death sentence based upon an
alleged violation of his Sixth Amendment right to have an
impartial jury and to confront his accusers during the penalty
phase of his trial. Hurst based his claim on an affidavit of
Juror Christina Foster, which had been provided to Hurst’s
postconviction investigator, Adam Pfeifer, on April 21, 2007.
Pertinent to the issue before us, Juror Foster stated as
follows:
7. During the trial, the jurors prayed together. We
did this throughout the time from when we were
selected. The prayer was led by either the foreman or
another older male juror. We prayed for our families
and for what we had to go through.
. . . .
3
9. During the trial, I often had lunch with my father
who worked near the courthouse. Prior to
deliberations, I asked my father where I could look in
the Bible for help and guidance in making my decision
for between life and death. After the jury had found
Mr. Hurst guilty but before we decided his sentence, I
opened my Bible at home because I wanted to read
something to help me with my decision. My father had
given me the section in the Bible where I could find
“an eye for an eye.” That night after reading that
section in the Bible, it helped me sleep better. It
didn’t make the decision any easier. The next day
during deliberations, I voted for the death penalty.
J.A. 441. Hurst argued that when Juror Foster’s father gave her
the “eye for an eye” citation, he implied that her decision
should be death, entitling Hurst to a new capital sentencing
hearing. In the alternative, Hurst requested an evidentiary
hearing to resolve any factual disputes pertaining to the
extraneous communication.
On August 2, 2007, the state filed a response to the MAR,
as well as a motion to dismiss. The state argued: (1) that the
“eye for an eye” passage given to Juror Foster by her father did
not constitute extraneous, prejudicial information sufficient to
impeach the jury’s verdict; (2) that the father’s mere act of
providing the passage to his daughter at her request likewise
did not rise to the level of an extraneous prejudicial contact
or communication about the case; and (3) that Hurst had
otherwise failed to present any evidence that Juror Foster’s
father knew what case she was sitting on or that he deliberately
attempted to influence her vote.
4
The state court scheduled a hearing for October 19, 2007,
to rule upon the state’s motion to dismiss. On the morning of
the hearing, Hurst filed a motion seeking leave to depose Juror
Foster, Juror Foster’s father, and Juror Foster’s grandmother.
In support of the motion, Hurst presented an affidavit from
Investigator Pfeifer, dated October 18, 2007. In the affidavit,
Investigator Pfeifer confirmed that he interviewed Juror Foster
on April 21, 2007, at which time “she agreed to provide [him]
with [the] affidavit which tracked [their] discussion.” J.A.
457. Investigator Pfeifer also stated that he had interviewed
Juror Foster’s father on October 9, 2007, who “confirmed that he
had a conversation with his daughter about an ‘eye for an eye’
section of the Bible during his daughter’s deliberations in the
Hurst trial,” and added that he had obtained the Biblical
citation from his mother in South Carolina. J.A. 458.
Investigator Pfeiffer’s efforts to interview Juror Foster’s
grandmother, however, had been unsuccessful, and Hurst had been
unable to determine exactly which “eye for an eye” verse Juror
Foster’s father had provided to his daughter. 1 Based upon
1
As we have previously noted, the King James Version of the
Bible contains several “eye for an eye” verses.
The Old Testament contains three such passages: (1)
“Eye for eye, tooth for tooth, hand for hand, foot for
foot,” Exodus 21:24; (2) “Breach for breach, eye for
eye, tooth for tooth: as he hath caused a blemish in a
(Continued)
5
Investigator Pfeiffer’s affidavit, Hurst argued that depositions
or an evidentiary hearing were in order to “significantly assist
in the search for truth about Juror Foster’s extrajudicial
conversations with her father.” J.A. 454.
On February 4, 2008, the state court made the following
relevant findings and conclusions:
The Fourth Circuit Court of Appeals has
determined that the Bible does not constitute an
improper external influence in a capital case, whether
read aloud by one juror to the others during
sentencing deliberations, whether read by a juror in
the privacy of his home, or whether read to herself by
a juror during deliberations [citing our holdings in
Robinson v. Polk, 438 F.3d 350 (4th Cir. 2006); Lynch
v. Polk, 204 Fed. Appx. 167 (4th Cir. 2006)
(unpublished); Billings v. Polk, 441 F.3d 238 (4th
Cir. 2006); and Lenz v. Washington, 444 F.3d 295 (4th
Cir. 2006)].
Moreover, defendant presented no evidence that
juror Foster’s father knew what case juror Foster was
sitting on, and no evidence that he deliberately
attempted to influence her vote by directing her to a
specific passage in the Bible. Instead, defendant
man, so shall it be done to him again,” Leviticus
24:20; (3) “And thine eye shall not pity; but life
shall go for life, eye for eye, tooth for tooth, hand
for hand, foot for foot,” Deuteronomy 19:21.
Robinson v. Polk, 438 F.3d 350, 358-59 n.8 (4th Cir. 2006).
However, “in the New Testament Sermon on the Mount, Jesus
said, ‘Ye have heard that it hath been said, An eye for an
eye, and a tooth for a tooth: But I say unto you, that ye
resist not evil: but whosoever shall smite thee on thy
right cheek, turn to him the other also.’ Matthew 5:38-39.”
Id.
6
presented a motion for depositions of juror Foster,
her father, and her grandmother.
J.A. 481-82. The state court denied Hurst’s claim on the merits
and denied his motion for discovery.
B.
On September 20, 2010, Hurst filed a petition for federal
habeas relief under 28 U.S.C. § 2254, again raising his Sixth
Amendment juror-influence claim. The state moved for summary
judgment. In response, Hurst filed a motion to depose the same
three witnesses. On the recommendation of the magistrate judge,
the district court denied the motion for depositions, declined
Hurst’s request for discovery or an evidentiary hearing, and
dismissed the habeas petition. The district court concluded as
follows:
The United States Supreme Court has not held that
the reading of a Bible verse constitutes “a matter
before the jury” or raises a presumption of prejudice
as an improper extrinsic influence. In light of the
Fourth Circuit cases holding that, in the context of
habeas review, a juror’s consultation and/or
recitation of Bible verses does not trigger a
presumption of prejudice (indeed, does not even
constitute an extrinsic influence), it cannot be said
that the state MAR court’s determination -- that the
father’s reference to an “eye for an eye” Biblical
passage in this case did not give rise to a
presumption of prejudice under Remmer -- was an
unreasonable application of, or contrary to, federal
law as determined by the United States Supreme Court.
Accordingly, [the] [c]laim . . . fails.
J.A. 361 (emphasis in original) (citing Remmer v. United States,
347 U.S. 227 (1954)). However, the district court granted a
7
certificate of appealability with respect to the issue of
whether Juror Foster’s extraneous contact with her father
violated Hurst’s Sixth Amendment rights. For the following
reasons, we reverse the judgment of the district court and
remand for an evidentiary hearing.
II.
A.
Under 28 U.S.C. § 2254(d), as revised by AEDPA, a federal
court may grant habeas relief to a state prisoner only if the
state court’s adjudication of the merits of the constitutional
claim at issue was (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States,” 28 U.S.C. §
2254(d)(1), or (2) “based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding,” 28 U.S.C. § 2254(d)(2). A state court’s decision
is “contrary to” clearly established Supreme Court precedent
only if it is “substantially different” from that precedent.
Williams (Terry) v. Taylor, 529 U.S. 362, 405 (2000). The
decision is “an unreasonable application of” clearly established
Supreme Court precedent only if it is “objectively
unreasonable.” Id. at 409.
As the United States Supreme Court has increasingly
cautioned, AEDPA significantly constrains our review of state
8
court decisions on federal constitutional claims. We are not at
liberty to substitute our judgment for that of the state court
on matters of federal constitutional law, even if we believe the
state court decision was incorrect. “The question under AEDPA
is not whether a federal court believes the state court’s
determination was incorrect but whether that determination was
unreasonable – a substantially higher threshold.” Schriro v.
Landrigan, 550 U.S. 465, 473 (2007) (emphasis added); see also
Harrington v. Richter, 131 S. Ct. 770, 785 (2011). The state
court decision may be deemed unreasonable “only if it is so
erroneous that ‘there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with th[e]
[Supreme] Court’s precedents.’” Nevada v. Jackson, 133 S. Ct.
1990, 1992 (2013) (per curiam) (quoting Harrington, 131 S. Ct.
at 786).
B.
The Sixth and Fourteenth Amendments to the United States
Constitution “guarantee[] to the criminally accused a fair trial
by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd,
366 U.S. 717, 722 (1961). They also protect “[t]he right of
confrontation” which “requires that the ‘jury’s verdict must be
based upon the evidence developed at the trial.’” Robinson v.
Polk, 438 F.3d 350, 359 (4th Cir. 2006) (quoting Turner v.
Louisiana, 379 U.S. 466, 472 (1965)). At its core, these Sixth
9
Amendment rights are designed to ensure “‘that the evidence
developed against a defendant shall come from the witness stand
in a public courtroom where there is full judicial protection of
the defendant’s right[s].’” Id. (quoting Turner, 379 U.S. at
472) (alteration in original).
The privacy and protection concerns that inevitably arise
when one seeks to impeach a jury’s verdict, however, are also
well established. “Despite the[] venerable protections afforded
to criminal defendants, the Sixth Amendment does not require
that all evidence introduced by the defendant tending to impeach
the jury’s verdict be considered by the courts.” Id. “In fact,
the common-law rule generally ‘prohibited the admission of juror
testimony to impeach a jury verdict.’” Id. (quoting Tanner v.
United States, 483 U.S. 107, 117 (1987)). This common-law rule,
now codified in Federal Rule of Evidence 606(b), prohibits juror
testimony to impeach the verdict, subject to three exceptions,
two of which are relevant here: “A juror may testify about
whether . . . extraneous prejudicial information was improperly
brought to the jury’s attention” or whether “an outside
influence was improperly brought to bear on any juror.” Fed. R.
Evid. 606(b)(2)(A)&(2)(B); 2 see also Mattox v. United States, 146
2
A juror may also testify concerning whether “a mistake was
made in entering the verdict on the verdict form.” Fed. R.
Evid. 606(b)(2)(C).
10
U.S. 140, 149 (1892) (“[T]he evidence of jurors, as to the
motives and influences which affected their deliberations, is
inadmissible either to impeach or to support the verdict. But a
juryman may testify to any facts bearing upon the question of
the existence of any extraneous influence, although not as to
how far that influence operated upon his mind.”).
In Mattox, the Supreme Court applied this common-law
exception and remanded for a new trial where a convicted
defendant unsuccessfully attempted to introduce affidavits to
the trial court setting forth prejudicial, extraneous statements
made by a bailiff to the jury about the defendant, as well as a
damaging newspaper article about the case that had been read to
the jury. See id. at 143-44. The Supreme Court held that such
“[p]rivate communications, possibly prejudicial, between jurors
and third persons, or witnesses, or the officer in charge, are
absolutely forbidden, and invalidate the verdict, at least
unless their harmlessness is made to appear.” Id. at 150.
Thereafter, in Remmer v. United States, 347 U.S. 227
(1954), the Supreme Court considered an alleged bribery attempt
of a juror during trial, and the FBI’s investigation of the
attempt, all of which was handled by the district court in an ex
parte proceeding prior to the verdict being delivered. After
learning of the incident through post-trial press accounts, the
defendant moved for a new trial and requested “a hearing to
11
determine the circumstances surrounding the incident and its
effect on the jury.” Id. at 228. Building upon its earlier
precedent in Mattox, the Supreme Court held that:
In a criminal case, any private communication,
contact, or tampering, directly or indirectly, with a
juror during a trial about the matter pending before
the jury is, for obvious reasons, deemed presumptively
prejudicial . . . . The presumption is not
conclusive, but the burden rests heavily upon the
Government to establish, after notice to and hearing
of the defendant, that such contact with the juror was
harmless to the defendant.
Id. at 229 (emphasis added). Unlike in Mattox, neither the
Court nor the defendant knew from the existing record “what
actually transpired, or whether the incidents that may have
occurred were harmful or harmless.” Id. The Court held that
“[t]he trial court should not decide and take final action ex
parte on information such as was received in this case, but
should determine the circumstances, the impact thereof upon the
juror, and whether or not it was prejudicial, in a hearing with
all interested parties permitted to participate.” Id. at 229-
30. 3
3
Interpreting and applying these Supreme Court cases, this
circuit has formulated a burden-shifting approach for analyzing
a convicted defendant’s allegations that his Sixth Amendment
rights were violated by an extraneous communication or contact
with a juror during the pendency of a trial. “First, the party
attacking the verdict must introduce competent evidence that
there was an extrajudicial communication or contact, and that it
was “‘more than innocuous interventions.’” Howard v. Moore, 131
F.3d 399, 422 (4th Cir. 1997) (en banc) (quoting United States
(Continued)
12
III.
Presented with evidence of the communication between Juror
Foster and her father about the Bible verse, the state court
considered whether extraneous prejudicial information or
evidence had been brought to Juror Foster’s attention (i.e., the
Bible verse itself), as well as whether an outside influence was
improperly brought to bear upon Juror Foster. In doing so, the
state court relied upon several Sixth Amendment “Bible-verse”
cases from our circuit, most notably our decision in Robinson.
In Robinson, a North Carolina death row inmate claimed that
his Sixth Amendment right to an impartial jury had been violated
during the sentencing phase of his trial when one of the jurors
asked the bailiff for a Bible, received it, and then read “eye
for an eye” passages to the other jurors in an effort to
persuade them to “change their position from one favoring a life
sentence to one favoring a death sentence.” Robinson, 438 F.3d
at 358 (internal quotation marks omitted). The state court
denied the claim without an evidentiary hearing.
v. Cheek, 94 F.3d 136, 141 (4th Cir. 1996)). “If this
requirement is satisfied, the Remmer I presumption automatically
arises.” Id. Once this initial showing is made and the Remmer
presumption of prejudice arises, “the burden shifts to the
prevailing party [at trial] to demonstrate that there exists no
reasonable possibility that the jury’s verdict was influenced by
[the] improper communication.” Id. (internal quotation marks
omitted).
13
After considering Remmer and the related Supreme Court
precedents, we concluded that the North Carolina court’s
decision denying petitioner relief was not an unreasonable
application of clearly established federal law. We held that:
it would have been reasonable for the MAR court to
conclude that the Bible had no bearing on any fact
relevant to sentencing, and was therefore not
tantamount to “evidence” that was used against him at
sentencing. . . . In the end, the jury concluded that
the balance of the aggravating and mitigating
circumstances warranted imposing the death penalty. .
. . [N]o Biblical passage - including the ones we
assume were read - had any evidentiary relevance to
the jury’s determination of the existence of these
aggravating and mitigating circumstances.
Id. at 363. We additionally held that:
it would have been reasonable for the MAR court to
conclude that the Bible is not analogous to a private
communication, contact, or tampering with a juror,
[about the matter pending before the jury,] and that
the common-law rule against allowing juror testimony
applied. See Remmer, 347 U.S. at 229. Unlike these
occurrences, which impose pressure upon a juror apart
from the juror himself, the reading of Bible passages
invites the listener to examine his or her own
conscience from within.
Id. (emphasis added). Although a third party, the bailiff,
provided the Bible to the juror at the latter’s request, we
found that distinction unavailing as well:
The fact that the bailiff provided the Bible to the
juror does not alter our conclusion that it was not an
external influence. Robinson does not allege that the
bailiff instructed the jury to consult the Bible, or,
for that matter, that he did anything other than
simply provide the Bible upon the juror’s request. On
these facts, the MAR court reasonably could have
concluded that the bailiff’s act of providing a Bible
14
was nothing more than an innocuous intervention into
the jury’s deliberations. . . . The MAR court
reasonably could have concluded that the bailiff’s
actions in fulfilling the juror’s request did not,
without more, turn the Bible into an external
influence.
Id. at 366 (citation omitted). 4
Both the state MAR court, and the Respondent in this
appeal, rely upon our decision in Robinson as support for the
determination that Hurst failed to make the requisite showing to
benefit from the Remmer presumption of prejudice. As in
Robinson, the Respondent argues, the Bible verse that Juror
Foster’s father gave to her did not constitute “extraneous
prejudicial information,” and his mere act of providing the
verse did not rise to the level of an improper, external
influence.
Recently, however, in Barnes v. Joyner, 2014 WL 1759085
(4th Cir. 2014), we held that “Remmer clearly established not
only a presumption of prejudice, but also a defendant’s
entitlement to an evidentiary hearing, when the defendant
presents a credible allegation of communications or contact
4
As the state MAR court correctly observed, this court has
held firm to the view that Bible-verse readings, whether
occurring privately or in the jury room, do not alone constitute
extraneous prejudicial information or an outside influence
improperly brought to bear upon the jury. See Lenz v.
Washington, 444 F.3d 295, 300-01 (4th Cir. 2006); Billings v.
Polk, 441 F.3d 238, 248-49 (4th Cir. 2006); Lynch v. Polk, 204
Fed. Appx. 167, 175 (4th Cir. 2006); see also Burch v. Corcoran,
273 F.3d 577, 591 (4th Cir. 2001).
15
between a third party and a juror concerning the matter pending
before the jury.” Id. at *10; see also id. at *12 (“[I]t is
clearly established federal law for purposes of our review under
AEDPA that a defendant is entitled to a hearing when he or she
presents a credible allegation of communications or contact
between a third party and a juror concerning the matter pending
before the jury.”). Once the defendant presents such a “genuine
allegation,” the “presumption of prejudice must be applied, and
. . . a hearing must be held.” Id. at *14 (emphasis added).
In Barnes, defense counsel, in closing arguments, suggested
to the jury that “if [the] jurors voted for the death penalty,
they would one day face God’s judgment for killing the[]
defendants.” Id. at *4. Barnes presented evidence, both to the
trial court and the state MAR court, that one of the jurors
contacted her pastor during the sentencing deliberations to
discuss the defense counsel’s argument. Barnes also alleged
that during this conversation the pastor directed the juror to a
biblical passage that contradicted the passage defense counsel
had relied upon. The juror, in turn, shared the passage with
her fellow jurors during deliberations. See id. The question,
therefore, was whether Barnes had presented a credible
allegation that the communication or contact between the juror
and her pastor “concerned the matter pending before the jury.”
Id. at *15.
16
There was no evidence presented that the pastor and the
juror discussed the facts of the specific case, or his views
about the death penalty, or that he attempted to persuade the
juror to vote a particular way. However, we held that the
juror’s extraneous conversation with her pastor “about defense
counsel’s argument, which asked the jury to return a sentence of
life imprisonment instead of death, bore on the jury’s
sentencing determination and was, therefore, ‘about the matter
pending before the jury.’” Id. at *17. We held as follows:
During the sentencing phase of Barnes’ trial, the jury
was charged with deciding whether to impose a sentence
of life imprisonment or a sentence of death for Barnes
and his co-defendants. Clearly, then, “the matter
before the jury” was the appropriateness of the death
penalty for these defendants. To the extent that a
juror had a conversation with a third party about the
spiritual or moral implications of making this
decision, the communication “was of such a character
as to reasonably draw into question the integrity of
the verdict,” Stockton, 852 F.2d at 743, and further
inquiry in a Remmer hearing was required.
Id. at *16. “To conclude otherwise,” we held, “would not simply
be incorrect or erroneous; it would be objectively
unreasonable.” Id. at *17. We also distinguished our prior
precedent in Robinson, concluding that:
the only similarity between the instant case and the
‘Bible in the jury room’ line of cases [was] the Bible
itself. Unlike in Robinson, where the juror in
question was simply given a Bible and read from it in
the jury room, [petitioner] has alleged that [the
juror] was actually directed to a specific biblical
passage by [the third party.] We alluded that
Robinson might have been a different case if the
17
bailiff had “instructed the jury to consult the Bible”
or done “anything other than simply provide the Bible
upon the juror’s request.”
Id. at *19.
Our holding in Barnes dictates the same result in this
case. According to the affidavits presented to the state MAR
court, Juror Foster asked her father where she “could look in
the Bible for help and guidance in making [her] decision for
between life and death.” J.A. 441. He, in turn, directed her
to an (as yet) undetermined “eye for an eye” verse, which she
consulted in private the night before returning the verdict.
The affidavits did not allege that Juror Foster discussed
with her father the facts or evidence that had been presented in
the trial, or the status of the jury’s deliberations. Nor was
there any evidence that Juror Foster’s father expressed any
opinion about the case or attempted to influence her vote.
Nevertheless, Hurst presented a credible allegation of a private
communication about the matter pending before the jury,
entitling Hurst to the presumption of prejudice and an
evidentiary hearing. Accordingly, we hold, as we did in Barnes,
that the state court’s failure to apply the Remmer presumption
and to conduct an evidentiary hearing in light of this showing
18
was contrary to or an unreasonable application of the Supreme
Court precedents applicable to juror-influence claims. 5
IV.
Our conclusion that the state court unreasonably applied
Supreme Court precedent, however, does not end our inquiry.
Hurst is not entitled to federal habeas relief unless we are
also convinced that the communication between Juror Foster and
her father “had a ‘substantial and injurious effect or influence
in determining the jury’s verdict.’” Fullwood v. Lee, 290 F.3d
663, 679 (4th Cir. 2002) (quoting Brecht v. Abrahamson, 507 U.S.
619, 637 (1993)); see also Hall v. Zenk, 692 F.3d 793, 805 (7th
Cir. 2012) (noting that the petitioner’s “initial victory is
more theoretical that practical, since he still must establish
that he was prejudiced by the state courts’ constitutional
error”).
On the present record, Hurst cannot meet this burden.
Therefore, he has requested an opportunity to now develop his
claim in an evidentiary hearing before the district court. As
was the case in Barnes, Hurst contends that the state court’s
failure to investigate Juror Foster’s communication with her
5
In accordance with our decision in Robinson, the state
court reasonably determined that the mere existence of the Bible
verse in the hands of Juror Foster and her consideration of it
was not extraneous prejudicial information that violated his
Sixth Amendment rights.
19
father gave the district court “no basis from which to determine
whether [the communication] was harmless.” Barnes, 2014 WL
1759085, at *19. The State, on the other hand, argues that 28
U.S.C. § 2254(e)(2) prohibits us from granting him that
opportunity in this case because, even if Hurst has met the §
2254(d) requisites, his failure to exercise proper diligence in
developing his claim in state court deprives him of the right to
do so now. We disagree.
Section 2254(e)(2) “imposes a limitation on the discretion
of federal habeas courts to take new evidence in an evidentiary
hearing.” Cullen v. Pinholster, 131 S. Ct. 1388, 1400-01
(2011). “A district court may not grant an evidentiary hearing
to a habeas petitioner if the petitioner ‘failed to develop the
factual basis of a claim,’” in state court, 28 U.S.C. §
2254(e)(2), due to “lack of diligence, or some greater fault,
attributable to the prisoner or the prisoner’s counsel.”
Williams (Michael) v. Taylor, 529 U.S. 420, 432 (2000). “Like §
2254(d)(1), [§ 2254(e)(2)] carries out AEDPA’s goal of promoting
comity, finality, and federalism by giving state courts the
first opportunity to review a claim, and to correct any
constitutional violation in the first instance.” Cullen, 131 S.
Ct. at 1401 (internal quotation marks and alteration omitted).
Moreover, “[s]ection 2254(e)(2) continues to have force [even]
where § 2254(d)(1) does not bar federal habeas relief.” Id. It
20
“still restricts the discretion of federal habeas courts to
consider new evidence when deciding claims that were not
adjudicated on the merits in state court,” and “ensure[s] that
federal courts sitting in habeas are not an alternative forum
for trying facts and issues which a prisoner made insufficient
effort to pursue in state proceedings.” Id. (internal quotation
marks and alteration omitted).
“[T]he requirements that petitioners exhaust their state
remedies and diligently develop the record in state court are
exacting burdens,” and “new evidence submitted in federal court
that fundamentally alters a claim presented in state court will
render that claim unexhausted.” Winston v. Pearson, 683 F.3d
489, 497 (4th Cir. 2012) (internal quotation marks omitted).
Moreover, “that a petitioner requested an evidentiary hearing
from the state court, without more, might not always suffice to
satisfy AEDPA’s diligence requirement.” Id.
In this case, however, Hurst did not merely seek to engage
in a fishing expedition to uncover evidence of juror misconduct
that he could and should have investigated and presented to the
state MAR court in the first instance. Rather, he presented
evidentiary affidavits in support of a specific Sixth Amendment
claim to the state MAR court, sufficient to entitle him to the
Remmer presumption of prejudice and a Remmer evidentiary
hearing. He then requested both discovery and an evidentiary
21
hearing before the state MAR court to explore the private
communication between Juror Foster and her father and, more
specifically, the question of whether their conversation
prejudiced the verdict. Because the state MAR court
unreasonably denied Hurst’s motion for further evidentiary
development, Hurst did not “fail[] to develop the factual basis
of [his] claim” under § 2254(e), and we are left with an
incomplete and inadequate record for review.
On remand, Hurst will be given the opportunity to develop
the record as it pertains to Juror Foster’s extraneous
conversation with her father, but he will not be entitled to the
Remmer presumption in attempting to demonstrate that the
communication had a substantial and injurious effect or
influence on the jury’s verdict. See Barnes, 2014 WL 1759085,
at *20. “[T]o be entitled to habeas relief,” Hurst “will need
to affirmatively prove actual prejudice by demonstrating that
the jury’s verdict was tainted by the extraneous communication
between” Juror Foster and her father. Id.
V.
For the foregoing reasons, the judgment of the district
court is reversed and the matter remanded for an evidentiary
hearing on the issue of whether the communication between Juror
Foster and her father about the Bible verse had a substantial
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and injurious effect or influence in determining the jury’s
verdict.
REVERSED AND REMANDED
23
SHEDD, Circuit Judge, concurring:
In view of the Supreme Court’s recent admonition in White
v. Woodall, 134 S.Ct. 1697, 1706 (2014) (emphasis in original),
that “[s]ection 2254(d)(1) provides a remedy for instances in
which a state court unreasonably applies this Court’s precedent;
it does not require state courts to extend that precedent or
license federal courts to treat the failure to do so as error,”
I believe the district court correctly determined that the state
MAR court did not unreasonably interpret Remmer v. United
States, 347 U.S. 227, 229 (1954), in denying Hurst relief.
Thus, if we were writing on a clean slate, I would affirm the
district court’s grant of summary judgment to the state.
However, I agree with Judge Traxler that, given our recent
sweeping decision in Barnes v. Joyner, -- F.3d --, 2014 WL
1759085 (4th Cir. 2014), we are constrained to vacate the grant
of summary judgment and remand this case for an evidentiary
hearing. Although I recognize that Barnes controls the outcome
in this case, I note that our opinion in Barnes “acknowledges
AEDPA’s constraints only in the abstract, while simultaneously
analyzing the case at bar as if it were on direct appeal,”
Barnes, 2014 WL at *21, (Agee, J., dissenting) and in so doing
“disregard[ed] perfectly reasonable interpretations [of Supreme
Court precedent] and hence contravene[ed] § 2254(d)’s
deferential standard of review,” White, 134 S.Ct. at 1704.
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Notwithstanding these reservations, I concur.
25